Kanakaridis v Westpac Banking Corporation [2015] FCA 1034

Kanakaridis v Westpac Banking Corporation [2015] FCA 1034

The adjournment application was refused because it did not comply with the Court's orders, was unsupported by affidavit evidence, the medical practitioner was not available for cross-examination, the certificate did not state that Mr Kanakaridis was unfit to attend Court, the asserted medical basis was inconsistent with the earlier asserted unavailability due to travelling, and the applicants had a history of late adjournment applications. Given the applicants' failure to appear, the applications were dismissed or refused under rr 35.33 and/or 35.32 of the Federal Court Rules 2011 (Cth).

Jurisdiction
Australia
Judgment Date
15 September 2015
Procedural Posture
Applications for Leave to Appeal and for an Extension of Time Within Which to Apply for Leave to Appeal From Interlocutory Orders / Hearing of Applications; Applicants Failed to Appear and Sought Adjournment
Outcome
Application for leave to appeal in VID 441 of 2015 refused; application for extension of time within which to apply for leave to appeal in VID 476 of 2015 refused; applicants ordered to pay costs.
Legal Topics
['leave to Appeal' 'extension of Time' 'interlocutory Orders' 'adjournment' 'non Appearance at Hearing' 'dismissal for Failure to Appear' 'case Management']
['practice and Procedure'] ['leave to Appeal' 'extension of Time' 'interlocutory Orders' 'adjournment' 'non Appearance at Hearing' 'dismissal for Failure to Appear' 'case Management']

Case Brief

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Procedural Posture

Applications for Leave to Appeal and for an Extension of Time Within Which to Apply for Leave to Appeal From Interlocutory Orders / Hearing of Applications; Applicants Failed to Appear and Sought Adjournment

Legal Issues

  1. 1 ["Whether the applicants' late request for an adjournment, supported by a medical certificate, should be granted." 'Whether the applications should be dismissed or refused because the applicants failed to appear at the hearing.' 'Whether the applications for leave to appeal and extension of time had sufficient merit to warrant leave.']

Ratio Decidendi

The adjournment application was refused because it did not comply with the Court's orders, was unsupported by affidavit evidence, the medical practitioner was not available for cross-examination, the certificate did not state that Mr Kanakaridis was unfit to attend Court, the asserted medical basis was inconsistent with the earlier asserted unavailability due to travelling, and the applicants had a history of late adjournment applications. Given the applicants' failure to appear, the applications were dismissed or refused under rr 35.33 and/or 35.32 of the Federal Court Rules 2011 (Cth).

Court Disposition

Application for leave to appeal in VID 441 of 2015 refused; application for extension of time within which to apply for leave to appeal in VID 476 of 2015 refused; applicants ordered to pay costs.

Orders

  • ['VID 441 of 2015: The application for leave to appeal from the orders of this Court made on 7 August 2015 be refused.' "VID 441 of 2015: The Applicants pay Respondent's costs of the application." 'VID 476 of 2015: The application for an extension of time within which to apply for leave to appeal from orders of this...